Archive List

Key events in the process to criminalise serious cartel conduct in Australia

The Cartel Project Archive List is a publicly available resource to assist those interested in researching cartels and the criminalisation process. The Archive List includes an index to the key events in the process of criminalising cartel conduct in Australia and an index to the source material relevant to each event.

Key events index

25 March 1998 - OECD Recommendation - Effective Action Against Hard-Core Cartels

The 1998 OECD Recommendation is widely regarded as being the event from which the path to criminalisation of cartel conduct in Australia begins. The Recommendation called upon member states to take effective action to deter serious cartel conduct and provided a definition of such conduct.

The influence of the 1998 Recommendation can be seen in the Australian discourse as it introduces the term 'hard core' as a way of describing the most damaging forms of cartel conduct and presses the notion of the 'egregious harm' done to economies and markets by such cartels. It was drawn upon by the ACCC and politicians in subsequent statements in support of cartel criminalisation. The reform was frequently portrayed as a reform endorsed if not required by international best practice, as encapsulated in the 1998 OECD Recommendation. The definition of 'hard-core' cartel conduct provided in the Recommendation also became a blueprint for the formulation of the cartel offence in the Competition and Consumer Act 2010 (specifically the definition of 'cartel provision' in s 44ZZRD).

The Archive List links to the OECD Recommendation, speeches by the then ACCC Chairman Allan Fels that relate to the OECD Recommendation, and a speech by Joanne Sheldon, OECD Deputy Secretary General, that touches on cartel regulation in an international context.

Primary Sources

Recommendation of the Council Concerning Effective Action Against Hard Core Cartels, OECD C(98)35/FINAL, (adopted by the Council at its 921st Session on 25 March 1998). You can link to the Recommendation here.

Ancillary Sources

General Cartel Bans: Criteria for Exemption for Small and Medium-sized Enterprises, OECD OCDE/GD(97)53, (Competition Policy Roundtable in April 1996, published in 1997). You can link to the paper here.
Alan Fels, 'Australian Business And The World Market - The Role Of The ACCC In The Face Of Increasing Globalisation' (Speech delivered at the Affairs of State Victoria, 4 June 1999). You can link to the speech here.
Alan Fels, 'The International Dimension to Competition Policy' (Speech delivered at the 6th Asian and Oceanic Antimonopoly Conference, Old Parliament House, Canberra, 15 November 1999). You can link to the speech here.
Hard Core Cartels, OECD (Report), published in 2000. You can link to the Report here.
Hard Core Cartels - Recent Progress and Challenges Ahead, OECD (Joint Global Forum on Trade and Competition held 15-16 May 2003, published 5 May 2003). You can link to the paper here.
OECD, 'Cartel Sanctions Against Individuals 2003' (Policy Roundtables DAF/COMP(2004)39, OECD, 10 January 2004). You can link to the paper here.
OECD, 'Hard Core Cartels: Third report on the implementation of the 1998 Council Recommendation 2005' (Reports, 2005). You can link to the report here.

Commentary - documents

Joanna Shelton, 'Competition Policy: What Chance for International Rules?' (Speech and accompanying Note by the Editor), November 1998. You can link to the material here.

9 June 2001 - Fels' speech, 'Regulating in a High-Tech Marketplace'

In his speech, Regulating in a High Tech Market, Professor Allan Fels AO, then Chairman of the ACCC, called for criminal penalties for 'hard core collusion', specifically price fixing, market sharing and bid rigging. Fels outlined his reasons why criminal penalties are justified and needed, including because punishment is warranted for this behaviour that involves 'deliberate and secret acts of dishonesty which directly impact on prices and seriously impair the operation of free markets', because of society's view that white collar crime should be pursued and punished vigorously, and because imprisonment 'will focus the mind of an executive' unlike pecuniary penalties and thus be more effective in securing deterrence.

The Archive List links to the speech and the ACCC press release in relation to the speech, as well as to a number of other speeches made by Professor Fels that touch on criminalisation of cartel conduct.

A list of media reports of Professor Fels' speech is also included.

Primary sources

Allan Fels, 'Regulating in a High Tech Market' (Speech delivered at the Australian Law Reform Commission Conference, Penalties: Policy, Principles & Practice in Government Regulation, Sydney, 9 June 2001). You can link to the speech here.
ACCC, 'ACCC Calls for Stronger Criminal Sanctions Including Jail Sentences for Price Fixing Offences Under Trade Practices Act' (News Release, MR131/01. 8 June 2001). You can link to the press release here.

Ancillary sources

Allan Fels, 'The TPA and World's Best Practice: Proposals for Criminal Penalties for Hard-core Collusion' (Speech delivered at the Australian Institute of Criminology Conference, Melbourne. 2 September 2002). You can link to the speech here.
Allan Fels, 'Australian Business and the World Market - The Role of the ACCC in the Face of Increasing Globalisation' (Speech delivered at Affairs of State, Victoria, 1999)
Allan Fels, 'The International Dimension to Competition Policy' (Speech delivered at the 6th Asian and Oceanic Antimonopoly Conference, Canberra, November 1999). You can link to the speech here.

Commentary - Media

'ACCC head calls for jail for price fixing execs', AAP, (online), 9 June 2001
'Australia watchdog urges prison for price fixing', Reuters, (online), 9 June 2001
'Fels wants jail option', Sunday Telegraph, (online), 10 June 2001
'ACCC's Fels Says Jail Plan for Collusion is a Moderate Proposal', AAP, (online), 10 June 2001
John Rolfe, 'Corporate cheats to face five years jail', Daily Telegraph, (online), 12 June 2001
'Fels calls for jail terms for hard core colluders', Inside Retailing, (online), 18 June 2001
'Jail would hurt more than fines', Canberra Times, (online), 5 July 2001

9 May 2002 - The convening of the Dawson Committee

The Dawson Committee was convened by Peter Costello, Treasurer in the Howard Liberal Government. The Dawson Report was commissioned to review the Trade Practices Act 1974 in broad terms to ensure that it supported the 'productivity, efficiency and growth' of the Australian economy given the significant changes of a global economy. Cartel criminalisation was not referred to specifically in the Committee's terms of reference but became of the key issues considered by the Committee in response to the ACCC's submission proposing criminal reform.

The Committee membership comprised:

Chair - Sir Daryl Dawson, AC KBE CB - former Justice of the High Court of Australia;
Ms Jillian Segal - Deputy Chair, Australian Securities and Investments Commission, bringing business and regulatory experience in consumer protection to the Inquiry; and
Mr Curt Rendall, with considerable experience in small business sector.

The Archive List links to the Government material foreshadowing the Trade Practices Review and establishing the Dawson Committee to review the Trade Practices Act. These documents include Prime Minister Howard's announcement of the review during the 2001 election campaign, Treasurer Costello's press release announcing the Dawson Committee and the formal establishment documents such as the membership and the terms of reference. Links to the submissions that cover the issue of criminalisation are also provided. Media reports and academic commentary on these events are listed. The Report of the Dawson Committee is available under the separate Key Event page for the Dawson Report.

Primary Sources

Trade Practices Act Review Committee, Review of the Competition Law Provisions of the Trade Practices Act (Commonwealth of Australia, Report dated 31 January 2003, released 16 April 2003). You can link to the home page for the Review here.

Ancillary sources

John Howard, 'Securing Australia's Prosperity' (Media Release, 15 October 2001)
Peter Costello, 'Review of the Competition Provisions of the Trade Practices Act 1974' (Media Release No. 023, 9 May 2002). You can link to the Media Release here.

Commentary - documents

Editorial, 'The Long Awaited Terms of the Review of the Trade Practices Act' (2002) 30 Australian Business Law Review 169
Editorial, 'A Mixed Bag of Law Reforms - Doing It Properly!!' (2002) 30 Australian Business Law Review 405
Ray Steinwall, 'Dawson Committee Review of the Trade Practices Act' (2002) 10 Competition & Consumer Law Journal 102

Commentary - Media

Business Council of Australia, 'Business Welcomes Dawson Report' (News Release, 16 April 2003)
Annabel Crabb, 'Competition Showman Takes His Final Bow for Now', The Age (Melbourne) 1 July 2003
Stephan Dabkowski, 'Boral Judgement Angers ACCC', The Age (Melbourne) 8 February 2003
Tom Dusevic, 'John Howard', Time Australia 31 December 2001
Jim Hanna, 'Big Business and ACCC to Clash Over Trade Practices Review', Australian Associated Press 11 May 2002
Joe Poprzeczny, 'Fels Fires up to Fight Collusion', WA Business News (Perth) 30 July 2002

31 January 2003 - Dawson Report with recommendation of criminalisation

The Dawson Report ultimately recommended criminal sanctions for cartel conduct although subject to resolution of a number of issues. The Report recommended that a working party be set up to consider issues, including the definition of a cartel offence and how prosecutorial and leniency (immunity) decisions would be made.

The Archive List links to the Dawson Committee Report and to material released by the Government and the Committee during the period the Committee was gathering information, conducting hearings and deliberating. Submissions made to the Committee that cover the issue of criminalisation are also linked to, for example the submission and supplementary submission by the ACCC and submissions by the Business Council of Australia and the Motor Traders Association.

News reports and a number of academic commentary pieces following the release of the Report are listed.

Primary Sources

Trade Practices Act Review Committee, Review of the Competition Law Provisions of the Trade Practices Act (Commonwealth of Australia, Report dated 31 January 2003, released 16 April 2003). You can link to the Report here.
Submissions to the Dawson Committee.

Ancillary sources

Peter Costello, 'Commonwealth Government Response to the Review of the Competition Provisions of the Trade Practices Act 1974' (Publication, 16 April 2004). You can link to the publication here.
Peter Costello, 'Release of the Report on the Competition Provisions of the Trade Practices Act 1974, and their Administration and the Commonwealth Government Response', (Media Release, No. 020, 16 April 2003). You can link to the Media Release here.
Peter Costello, 'Report of the HIH Royal Commission', (Media Release, No. 020, 16 April 2003). You can link to the Media Release here.

Commentary - documents

Warren Pengilley, 'The Ten Most Disastrous Decisions Made Relating to the Trade Practices Act' (2002) 30 Australian Business Law Review 331
Warren Pengilley, 'The ACCC's Submission to the Dawson Inquiry Urges that We Should Bring Our Law Into Line With that of Other Countries' (2002) 10 Competition & Consumer Law Journal
Brent Fisse, 'The Dawson Review: Enforcement and Penalties' (2003) 9 University of New South Wales Law Journal 54
Rhonda Smith, 'Further to Round on Penalties, Damages and Pt IV of the TPA' (2003) 11 Competition & Consumer Law Journal
Ray Steinwall, 'The Dawson Committee Review of the Competition Provisions of the Trade Practices Act' (2003) 11 Competition & Consumer Law Journal
Julie Clarke and Mirko Bagaric, 'The Desirability of Criminal Penalties for Breaches of Part IV of the Trade Practices Act' (2003) 31 Australian Business Law Review 192
Ray Steinwall, 'Editorial' (2003) 11 Competition & Consumer Law Journal
Allan Fels, 'Looking Back on Ten Years of Australian Competition Law' (2003) 11 Competition & Consumer Law Journal
Bob Baxt, 'The Past 10 Years of Competition Law and the Future of Competition Regulation' (2003) 11 Competition & Consumer Law Journal
Steven Munchenberg, 'Comments from Commerce' (2005) 13 Trade Practices Law Journal 235
Julie Clarke, 'Criminal Penalties for Contraventions of Part IV of the Trade Practices Act (2005) 10 Deakin Law Review 141
Brent Fisse, 'Cartel Offence: Dishonesty?' (2007) 35 Australian Business Law Review 235

Commentary - Media

Peter Switzer, 'Calls for Pricing Inquiry Heat Up', The Australian, 15 April 2003, 21
Australian Broadcasting Corporation, 'Fed Govt Endorses Dawson Inquiry Recommendations', The World Today, 16 April 2003, (John Highfield reporting, Alexandra Kirk reporting). You can link to the transcript here.
Australian Broadcasting Corporation Radio National, 'Criminal Sanctions Introduced for Cartel Behaviour in Response to Dawson Report', PM, 16 April 2003 (Catherine McGrath). You can link to the transcript here.
Australian Broadcasting Corporation Radio National, 'Dawson Report - Business Reaction', PM, 16 April 2003 (Darcy Lambton). You can link to the transcript here.
Jason Frenkel, 'Crackdown on Cowboys', Herald Sun (Melbourne), 17 April 2003, 41
Jason Frenkel, 'New Legislation Proposed to Put Price Fixers in Jail', Daily Telegraph, 17 April 2003, 57
Christine Wallace and Richard Gluyas, 'Canberra Muzzles Watchdog', The Australian, 17 April 2003, 19
Krista Hughes, 'Price-fixers Deserve Jail - Review Urges Hard Time for `Hard Core' Culprits', The Daily Telegraph, 17 April 2003, 59
Christine Wallace and Richard Gluyas, 'Mergers to Bypass Consumer Watchdog', The Australian, 17 April 2003, 2
Phillip Hudson, 'Price Fixers to Face Jail', Business, The Age (Melbourne), 17 April 2003, 1
Cosima Marriner, 'Hard-core Cartels `Criminal'', The Sydney Morning Herald, (Sydney), 17 April 2003, 33
Andrew Goode, 'Screws Tighten Against Illegal Practices', The Advertiser, (Adelaide), 26 April 2003, 28
Toni O'loughlin, 'Big Vs Small in Trade Practices Review', The Sydney Morning Herald, (Sydney), 10 May 2002, 20

16 April 2003 - Government Response to the Dawson Report (including announcement of the Working Party)

On 16 April 2003 Peter Costello, Treasurer in the Howard Liberal Government, announced the release of the Dawson Committee Report on the Trade Practices Act. In his announcement Costello indicated that the government accepted in principle the recommendation to introduce criminal sanctions for cartel conduct subject to the issue being further examined by a working party. The Treasurer noted that the details of the Working Party would be announced after consulting on the issue.

Costello subsequently issued a press release on 3 October 2003 announcing details of a working party to 'consider whether appropriate criminal offences for cartel behaviour can be introduced into Commonwealth law.'

The Archive List links to the Government material and also lists news reports and academic commentary about the Government's response to the release of the Dawson report.

Primary Sources

Peter Costello, 'Release of the Report on the Competition Provisions of the Trade Practices Act 1974, and their Administration and the Commonwealth Government Response' (Media Release, No. 020, 16 April 2003). You can access the Media Release here.
Peter Costello, 'Commonwealth Government Response to the Review of the Competition Provisions of the Trade Practices Act 1974' (Publication, 16 April 2004). You can access the Government Response here.
Peter Costello, 'Working Party to Examine Criminal Sanctions for Cartel Behaviour' (Media Release, No. 086, 3 October 2003). You can access the Media Release here.

Commentary - documents

Warren Pengilley, 'Trade Practices Act Amendment Bill and Government Indication of Future Attitudes' (Comments) (2004) 12 Competition & Consumer Law Journal 1
Brent Fisse, 'Cartel Offence: Dishonesty?' (2007) 35 Australian Business Law Review 235
Julie Clarke, 'Criminal Penalties for Contraventions of Part IV of the Trade Practices Act' (2005) 10 Deakin Law Review 141

Commentary - Media

Tim Boreham, 'The Fix is Out: Cartels Probed', The Australian (Sydney), 4 October 2003, 29
'Fed - Govt Releases Terms of Reference of Price-fixing Inquiry', Australian Associated Press, 4 October 2003
Fred Brenchley, 'No More Room At The Top For A Regulator Like Fels', The Sydney Morning Herald (Sydney), 11 August 2003, 29

2004 Working Party Report and Consultation Process

On 3 October 2003 the Treasurer in the Howard Liberal Federal Government, Peter Costello, announced the convening of the working party to consider "whether appropriate criminal offences for cartel behaviour can be introduced" into Australian law. The working party to consider the criminal offence was recommended by the Dawson Committee's review of the Trade Practices Act in its Report released in 31 January 2003.

The Dawson Report noted there was general agreement that sufficiently serious or 'hard-core' cartel conduct was deserving of jail but that there were real concerns about many of the justifications for criminalising cartels as well as about the definition and implementation of a cartel offence. The Dawson report ultimately recommended criminal sanctions for serious cartel conduct but recommended that a 'joint body' representing the bodies involved in policy and to be involved in investigation and prosecution of any cartel offence (Treasury, the Commonwealth Director of Public Prosecutions, the Attorney-General's Department, and the ACCC), be convened to resolve these issues.

The report, Working Party on Criminal Penalties for Cartel Behaviour, was not disclosed publicly until it was released by Treasury on 2 December 2010 in response to a Freedom of Information request by Brent Fisse Lawyers.

The Archive List links to the Government material announcing the working party and the working party report and also lists news reports and academic commentary about the report.

Primary Sources

Working Party on Penalties for Cartel Behaviour, 'Working Party on Criminal Penalties for Cartel Behaviour' (Report, 2004). The Working Party Report was released by Treasury on 2 December 2010 following an FOI application by Brent Fisse. You can access the Report as released to Brent Fisse here.
Working Party on Penalties for Cartel Behaviour, 'Working Party on Criminal Penalties for Cartel Behaviour' (Report, 2004), redacted version. The Working Party Report was released by Treasury following an FOI application by Brent Fisse. You can access the redacted Report as released to Brent Fisse here.
Australian Competition & Consumer Commission, Supplementary Submission to the Dawson Committee, Review of the Competition Provisions of the Trade Practices Act 1974, 15 September 2002. The ACCC Supplementary Submission was released by the ACCC on 4 October 2007 following an FOI application by Brent Fisse and Lexpert Publications Pty Ltd. You can access the submission and an account of the FOI access here.

Ancillary sources

Administrative Appeals Tribunal Application for Review of Decision by ACCC to deny access to ACCC submissions to the Dawson Review Committee and of Treasury to deny access to the report entitled "Working Party on Criminal Penalties for Cartel Behaviour" submitted by FOI Brent Fisse to the Administrative Appeals Tribunal, 26 June 2007. You can access the Application including the attached documents here.
Letter from Gilbert & Tobin Lawyers acting for Brent Fisse to Australian Government Solicitor setting out Submission to Secretary of Treasury, 24 August 2007. You can access the letter and the attached documents here.
Affidavit in Administrative Appeals Tribunal application, Brent Fisse, 12 February 2008. You can access the affidavit here.

Commentary – documents

Bob Baxt, 'The Past 10 Years of Competition Law and the Future of Competition Regulation' (2003) 11 Competition & Consumer Law Journal 1
Brent Fisse, 'The Cartel Offence: Dishonesty?' (2007) 35 Australian Business Law Review 235
Julie Clarke, 'Criminal Penalties for Contraventions of Part IV of the Trade Practices Act' (2005) 10 Deakin Law Review 141

Commentary – Media

Gabrielle Costa, 'Tip-off Time for ACCC', The Age, 11 December 2004
David Crowe and Matthew Drummond, 'Costello's Cartel Report Not for Public Eyes', Australian Financial Review, 11 October 2007
Brent Fisse, 'Costello Working Hard to Avoid Action on Cartels', Australian Financial Review, 26 October 2007

2 February 2005 - Treasurer Costello's Press Release Announcing the Introduction of Criminal Penalties for Serious Cartel Conduct

On 2 February 2005 Treasurer Peter Costello announced the intention of the Howard Liberal Government to introduce criminal sanctions for serious cartel conduct. Costello provided a statement about the proposal and said that the Government would consult with the States and Territories over the next three months. Costello said that the Dawson Review had recommended criminal sanctions, recognising international experience that suggested they were effective in deterring cartel conduct.

The Dawson Committee had recommended criminal sanctions subject to resolving a number of problems including how to appropriately define a criminal offence and how to implement an effective leniency or immunity policy. These issues had been the subject of the working party report.

On the issue of definition, Costello said proposed an offence that included an element of dishonesty so as to capture conduct that deceived customers.

On the issue of immunity policy, Costello said that there would be a formal memorandum of understanding between the ACCC and the CDPP setting out procedures for investigating cartels, when the ACCC will refer a matter to the CDPP for prosecution and also the factors that the CDPP would consider when it made its independent assessment about whether to prosecute (impact of the cartel, scale of detriment, and previous cartel conduct). He said that there would be a 'clear and certain immunity policy' that set out conditions for grant of immunity by the CDPP on advice of the ACCC.

The maximum jail term was to be set at five years. Fines were to be set at $220,000 for individuals and $10 million for corporations, or three times the value of the benefit from the cartel, or where the value cannot be determined, 10 per cent of annual turnover.

Primary Sources

Peter Costello, 'Criminal Penalties for Serious Cartel Behaviour' (Press Release, No. 004, 2 February 2005).
Commentary - documents
Brent Fisse, 'The Cartel Offence: Dishonesty?' (2007) 35 Australian Business Law Review 235
Brent Fisse, Spun Out: Peter Costello's Palace revolutions on Cartel Criminalisation (25 April 2011) (updated) Brent Fisse Lawyers

Commentary - Media

Australian Broadcasting Corporation, 'Tougher Penalties for Price Fixing Business Cartels', The 7.30 Report, 2 February 2005 (Kerry O'Brien and Peter Costello). You can review the transcript of the interview here.
Frank Cassidy, 'Chamber Chief Says Cartel Crackdown is Overreaction', Canberra Times (Canberra), 4 February 2005, 13
Chris Twyman, 'Malefactors Face Devil They Know' The Sydney Morning Herald (Sydney) 5 February 3005 49
'ACCC Wants to Focus More on Criminal Prosecutions' Australian Associated Press 17 February 2005
Katharine Murphy, 'Apathy Rules Out Chance of Prison', The Australian (Sydney), 23 December 2005, 2
Nassim Khadem, 'Company Laws Stuck in Traffic', The Age (Melbourne), 24 December 2005

2 November 2007 - Visy Penalty Decision

The ACCC instituted proceedings against companies in the Visy group, its Chairman, Richard Pratt and two Visy executives for price fixing and market sharing conduct on 21 December 2005.

The ACCC alleged, and it was subsequently held by the Federal Court, that Visy and Amcor Ltd, its main competitor in the supply of cardboard packaging, had an agreement to fix prices and to allocate customers. Between them, Visy and Amcor had a 90% share of the $1.2 billion cardboard box market.

Amcor and its senior executives received immunity from the ACCC after coming forward with information about the conduct and cooperating with the ACCC investigation.

The case attracted extensive media coverage and opinions were sought of many public figures, including politicians past and present.

The Visy case is regarded as being influential in the decision to criminalise cartel conduct in Australia. Justice Heerey of the Federal Court, in his decision imposing penalties on Visy, noted the widespread effects of the Visy and Amcor price fixing arrangements. Justice Heerey referred to the fact that criminal sanctions for such conduct are available in other countries. The case, and Justice Heerey's comments, featured in the Parliamentary debates and reports during the passage of the cartel criminalisation legislation.

The Archive List links to the Federal Court judgements in the case, ACCC press releases, Senate Committee hearings, and also lists news reports and academic commentary about the case.

Primary Sources

Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (2 November 2007). You can access the judgement on the Austlii website here.
ACCC Visy agreed statement of facts 8 October 2007

Ancillary sources

Australian Competition and Consumer Commission - Proceedings instituted against Visy Group, senior executives for alleged cartel in the corrugated fibreboard container market 21 December 2005 Release # MR 327/05. You can link to the media release here.
Australian Competition and Consumer Commission - Comments on Pratt Proceedings Release # NR 095/09 29 April 2009. You can link to the media release here.
Australian Competition and Consumer Commission - ACCC welcomes record penalties against Visy: Calls for stronger cartel law Release # MR 302/07 2nd November 2007. You can link to the media release here.
Australian Competition and Consumer Commission v Visy Industries [2006] FCA 136 (23 February 2006).
Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444 (29 March 2007) (re Legal Prof Privilege). You can access the judgement on the Austlii website here.
Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 4) [2008] FCA 1374 (27 August 2008) (re use of documents). You can access the judgement on the Austlii website here.
Evidence to Senate Economics Legislation Committee, Senate, Canberra, 22 June 2009, Mr Brian Cassidy, Mr Graeme Samuel ACCC - ACCC questioned by Joyce re Amcor, Visy and Pratt matters 220609 page E33. You can access the transcript on the Australian Parliament website here.
Australian Competition and Consumer Commission - Opening statement - Visy news conference, Mr Graeme Samuel.

Commentary - documents

Robert Baxt, 'Editorial' (2007) 35 Australian Business Law Review 385
Caron Beaton-Wells and Fiona Haines, 'The Australian Conversion: How the Case for Cartel Criminalisation Was Made' (2010) 1(4) New Journal of European Criminal Law. You can find the article on the Cartel Project Outputs page here.
Caron Beaton-Wells and Neil Brydges, 'The Cardboard Box Cartel Case: Was All the Fuss Warranted?' (2008) 36 Australian Business Law Review 6
Caron Beaton-Wells, 'Criminalising Cartels: Australia's Slow Conversion' [2008] 31(2) World Competition 205
Caron Beaton-Wells, 'The Politics of Cartel Criminalisation: A Pessimistic View From Australia' (2008) 29(3) European Competition Law Review 185
Caron Beaton-Wells, 'Milestone or Roadblock Cartel Criminalisation and the ACCC' in Caron Beaton-Wells and Ariel Ezrachi (eds), Criminalising Cartels: Critical Studies of an International Regulatory Movement (Hart Publishing, 2011)
Caron Beaton-Wells, 'Cartel Criminalisation and the Australian Competition and Consumer Commission: Opportunities and Challenges' in Caron Beaton-Wells and Ariel Ezrachi (eds), Criminalising Cartels: Critical Studies of an International Regulatory Movement, (Hart Publishing, 2011)
Caron Beaton-Wells and Fiona Haines, 'Making Cartel Conduct Criminal: A Case Study of Ambiguity in Controlling Business Behaviour' (2009) 42(2) The Australian and New Zealand Journal of Criminology 218. You can find the article on the Cartel Project Outputs page here.
Caron Beaton-Wells, 'Australia's Criminalisation of Cartels: Will it be Contagious?' Paper presented at 4th Annual ASCOLA conference, 16-17 June 2009, Washington DC, published in R Zach, A Heinemann and A Kellerhals (eds), The Development of Competition Law: Global Perspectives, Academic Society for Competition Law Series, (Edward Elgar, Cheltenham, UK, 2010). You can find the paper on the Cartel Project Outputs page here.
Paul Evans, Peter Sadler and Michelle Guy, 'An Unsettling Remedy: Enforcing the Law by Settlement' (2010) 18 Trade Practices Law Journal 270
Adrian Hoel, 'Crime Does Not Pay But Hard-core Cartel Conduct May: Why It Should Be Criminalised' (2008) 16 Trade Practices Law Journal 102
Nick McHugh and Warren Pengilley, 'Lessons From the Visy Case' [2008] 60(1) Keeping Good Companies 36
Alan Moran, 'Competition and the Cartel Crusade' (2008) 59(4) The Institute of Public Affairs Review: A Quarterly of Review of Politics and Public Affairs 57
Warren Pengilley, 'The Lessons From Visy' (2008) 23(9) Australia and New Zealand Trade Practices Bulletin 134
Kate Warner, 'Sentencing Review 2006-2007' (2007) 31 Criminal Law Journal 359\
Alex Wynn, 'Richard Pratt and the Visy Executive Saga and the Class Action Against Amcor' [2008] 10 (5) ADR Bulletin 91

Commentary - Media

'Time to Make Cartels a Crime', The Australian Financial Review (Sydney), 10 October 2007, 70
'Cardboard Cut-out on Cartels', News and Features - Leaders, The Sydney Morning Herald (Sydney), 11 October 2007, 14
Editorial, 'Jailing the Price-fixers', The Herald Sun (Melbourne) 11 October 2007, 22
John Durie, 'Pratt's Tale Straight Out of the Box', The Australian (Sydney), 9 October 2007, 40
Stephen Mayne, 'Did Dick Pratt's Donations Influence Costello's Cartel Backflip', Crikey (online), 9 October 2007. You can link to the article on the Crikey website here.
Terry McCrann, 'Hard Cell to Beat Cosy Cartels', Herald Sun, 10 October 2007, 43
David Crowe and Matthew Drummond, 'Costello's Cartel Report Not for Public Eyes', The Australian Financial Review (Sydney), 11 October 2007, 11
Gemma Jones, 'Folding Pratt's Cartel - He Paid a Small Price for Ripping Off the Public', The Daily Telegraph, 12 October 2007, 35
Mike Carlton, 'He Won't Put the Boot in When This Mate is Down', The Sydney Morning Herald (online), 13 October 2007
Malcolm Maiden, 'Visy Agreement Comes in Cheaper, But at a Price', The Sydney Morning Herald (Sydney), 13 October 2007, 43
Stuart Washington, 'Jury is Out on Whether or Not to Impose Criminal Sanctions on Cartel Behaviour', Business, The Age (Melbourne), 13 October 2007, 5
Malcolm Maiden, 'Australian Corporate Culture Yet to Appreciate Damage Cartels Cause', Business, The Age (Melbourne), 13 October 2007, 1
Stuart Washington, 'Who Really Foots the Bill for Pratt's Philanthropy', Business, The Age (Melbourne), 13 October 2007, 5
Terry McCrann, 'Confessions - It's All In the Timing', Sunday Mail, 14 October 2007, 83
Features, 'The Fine Lines We All Walk Along', Sunday Telegraph, 14 October 2007, 85
Terry McCrann, 'In the Price-fixing Caper, Worst-case Scenario Means Reaching for the Cheque Book - Boxed in by Poor Move', Your Money, Sunday Herald Sun (Melbourne), 14 October 2007, 104
Paul Kerin, 'Price Fixing and Philanthropy Go Hand in Hand: It's Time To End the Farce', The Australian (Sydney), 16 October 2007, 30
Stephan McMahon, 'Call for Jail in Cartel Actions', The Herald Sun (Melbourne) 17 October 2007, 43
Matthew Drummond, 'Low Price-fixing Fines Reflect Ambivalence', The Australian Financial Review (Sydney), 19 October 2007, 21
Editorial, 'Costello Needs to Move on Cartels', The Australian Financial Review (Sydney), 24 October 2007, 66
Brent Fisse, 'Costello Working Hard to Avoid Action on Cartels', The Australian Financial Review (Sydney), 26 October 2007, 75
ABC, 'Business Experts Back Calls for Cartel Crackdown', PM, 2 November 2007 (Interviewer Simon Santow, Speakers Peter Costello, Frank Zumbo, Ian Ramsay, Kevin Rudd). You can access the transcript here.
ABC, 'ACCC Calls for Harsher Penalties for Cartels', PM, 2 November 2007 (Interviewer Alison Caldwell, Speakers Bob Alexander, Graeme Samuel, Kevin Rudd). You can access the transcript here.
Leonie Wood with AAP, 'Pratt Headed Worst Cartel, Says Judge', The Age (Melbourne), 3 November 2007
Leonie Wood with AAP, 'Pratt Knew Conduct Was Illegal: Judge', The Age (Melbourne), 3 November 2007
Craig Binnie and Karen Collier, 'Cardboard Cartel's $38m Fine - Judge Tells Visy Owner He's Australia's Worst Price Fixer', The Courier Mail (Brisbane) 3 November 2007, 17
Crikey Says, Crickey (online), 5 November 2007. You can access the article on the Crikey website here.
Adam Schwab, 'It Is Time Australia Sent Cartel Leaders to Jail', Crickey (online), 5 November 2007. You can access the article on the Crikey website here.
Doug Steley, Letters, 'The High Cost of Cartels', The Courier Mail (Brisbane), 5 November 2007
'At Last, a Watchdog is Set to Gain Teeth Against Cartels', The Age (Melbourne), 11 November 2007
'Pratt's Future Not Up To Me - Costello', AAP, 19 November 2007
Matthew Drummond, 'Judge Joins Call for Cartel Jail Option', The Australian Financial Review (Sydney), 27 November 2007, 5
Blair Speedy, 'Second Judge Urges Jail for Cartels', The Australian (Sydney), 27 November 2007, 8
Ruth Williams, 'Labor Moves on Pledge to Criminalise Cartels', The West Australian (Perth) 4 December 2007
Ruth Williams, 'Government Picks Up Where Predecessor Left Off on Law to Target Price Fixers', The Age (Melbourne), 4 December 2007
Ruth Williams, 'Labor Eyes Time for Cartel Crime', The Sydney Morning Herald (online), 4 December 2007. You can access the article on the SMH website here.
ABC, 'Govt Moves to Toughen Penalties for Price-fixing Cartels', The World Today, 10 December 2007 (Interviewer Eleanor Hall, Speakers Chris Bowen, Graeme Samuel). You can access the transcript on the ABC website here.
Samantha Donovan, 'Govt Flags Jail Sentences for Cartel Offences', ABC News (online), 10 December 2007. You can access the transcript on the ABC website here.
James Kirby, 'What a Pratt', The Monthly (online), December 2007 - January 2008 http://www.themonthly.com.au/nation-reviewed-james-kirby-what-pratt--752
Terry McCrann, 'It's Time We Gave Our Watchdogs the Fangs to Prosecute Cartel Criminals', The Australian (Sydney), 15 December 2007, 37

3 December 2007 - Labor Rudd Government Took Office

The Rudd Labor Government came into office on 3 December 2007. In the lead up to the election, Mr Rudd promised to introduce criminal sanctions for serious cartel conduct. Shortly after the election win, Mr Chris Bowen, Minister for Competition Policy and Consumer Affairs, was widely quoted in the media confirming that introducing criminal sanctions for serious cartel conduct would be a priority for the Government and saying that the previous Liberal Government had promised criminal penalties in 2003 but failed to implement them. Bowen cited international experience that suggested criminal penalties could deter cartel conduct as a key reason for the legislation.

Two draft bills were released before the bill was finalised and introduced into Parliament.

On 11 January 2008 the first draft exposure bill, along with a draft memorandum of understanding between the Australian Competition and Consumer Commission and Commonwealth Director of Public Prosecutions and a discussion paper were released for public comment. This draft bill contained dishonesty as an element and a maximum jail term of 5 years. It was widely believed to be based on the draft bill prepared for the previous Government. After receiving public submissions the Government decided to make changes to the bill.

On 27 October 2008 the second, revised draft exposure bill was released by Bowen. The major changes were that the definition of the offence did not include the element of dishonesty and that the maximum jail term was increased to 10 years.

Minister Bowen introduced the Trade Practices (Cartel Conduct and Other Measures) Bill 2008 into Parliament on 3 December 2008, meeting the one year timeframe the Government had set. Bowen described the introduction of the legislation as fulfilling an "important election commitment by the Government".

The Archive List links to media releases, speeches and articles by Government Ministers announcing the Government's plans for the introduction of cartel legislation and lists related media reports and academic commentary.

Primary Sources

Chris Bowen and Craig Emerson, 'Rudd Government Acts to Strengthen Laws to Promote Fair Competition' (Joint Media Release, No. 027, 28 April 2008). You can link to the Media Release here.
Chris Bowen - Speech - 'The Rudd Government's Economic Agenda' - Address to CEDA's 2008 State of the Nation Conference, Canberra 6 June 2008. You can link to the Speech here.
Chris Bowen, 'Rudd Government to Introduce Legislation Criminalising Cartels' (Media Release, No.087, 27 October 2008). You can link to the Media Release here.
Chris Bowen, 'Bowen Introduces Cartels Legislation into Parliament' (Media Release, No. 102, 3 December 2008). You can link to the Media Release here.

Commentary - documents

Kevin Rudd, 'The Global Financial Crisis' (2009) The Monthly. You can link to the article here.
Middletons, What Can We Expect From the ALP Government (19 December 2007). You can link to the article here.
Commentary - Media
Matthew Drummond, 'Judge Joins Call for Cartel Jail Option', The Australian Financial Review (Sydney), 27 November 2007, 5
Blair Speedy, 'Second Judge Urges Jail for Cartels', The Australian, 27 November 2007, 8
Ruth Williams, 'Labor Moves on Pledge to Criminalise Cartels', The West Australian (Perth), 4 December 2007, 44
Ruth Williams, 'Government Picks Up Where Predecessor Left Off on Law to Target Price Fixers', The Age (Melbourne), 4 December 2007, 1
Ruth Williams, 'Labor Eyes Time for Cartel Crime', The Sydney Morning Herald (Sydney), 4 December 2007
Samantha Donovan, Govt Flags Jail Sentences for Cartel Offences (10 December 2007) ABC News. You can link to the article here.
ABC Local Radio, 'Govt Moves to Toughen Penalties for Price-fixing Cartels', The World Today, 10 December 2007, (Reporter Samantha Donovan, Interviewees Chris Bowen, Graeme Samuel). You can link to the transcript here.
Chris Bowen, 'Boom Time Treasurer Busted No Move', The Sydney Morning Herald (Sydney), 27 August 2008, 11
'Business Cartels Top Labor's Hit List', National Business Review, 18 January 2008

January 2008 - Exposure Draft Bill (1), with Discussion Paper and Draft Immunity Policy and ACCC-CDPP MOU Released for Consultation

On 11 January 2008 the Rudd Labor Government released an Exposure Draft Bill and related documents for public comment. The related documents comprised a discussion paper providing a brief background to the Bill and highlighting certain issues for comment - how to distinguish between criminal and civil prohibited conduct and whether telephone intercept warrants should be available in relation to the cartel offence, and the draft MOU between the ACCC and the CDPP setting out how the two agencies would co-operate in respect of prosecutions.

The Exposure Draft Bill and draft MOU were consistent with the approach set out by former Treasurer Costello in his Press Release of 2 February 2005, prior to the defeat of the Howard Government in November 2007. The Labor Government indicated it may amend the Exposure Draft Bill as a result of submissions received. Submissions were to be made by 29 February 2008.

Approximately 26 submissions were received and were from a range of parties including Australian and international practitioner associations, individual law firms, academics, industry associations and unions.

Some examples of the various positions taken in the submissions made in response to the exposure materials are as follows:

Distinguishing between civil and criminal cartel conduct - submissions were divided on whether dishonesty was an appropriate element to distinguish between an offence and a civil contravention.
Immunity - the incentive of immunity was said to be critical to stopping cartels and there was emphasis given to the need coordinate ACCC and CDPP policies.
Telecommunications intercept powers - submissions were divided on the issue of whether telecommunications intercept powers should be available to the ACCC.
Corporate criminal liability - the Business Council of Australia said there was no case made for extending the criminal offence beyond individual liability to corporate liability.
Appropriate jail term - there was divergence on the appropriate length of maximum jail term, some supporting the proposed five year maximum and some calling for a ten year maximum.

The Archive List links to the Exposure Draft Bill and associated material and to the Parliamentary Reading Speeches and also lists news reports and academic commentary about the Draft Bill.

Primary Sources

Cartels Exposure Draft Bill, Attachment A.
Cartels Draft ACCC-DPP MOU, Attachment B.
Cartels Bill Discussion Paper - Treasury.
Criminal Penalties for Serious Cartel Conduct - Draft Legislation Abstract.

Ancillary sources

Submissions in response to EDB 1
American Bar Association.
Australian Bankers Association.
Australian Constructors Association.
Australian Industry Group.
Dr Caron Beaton-Wells and Mr Brent Fisse.
Blake Dawson.
Business Council of Australia.
Chartered Secretaries Australia.
Ms Julie Clarke.
Clayton Utz. You can link to the submission here.
Consumer Action Law Centre.
Cooper Grace Ward Lawyers.
Fair Trading Coalition.
Ms Bernice Finlayson.
IBA Working Group of the Antitrust Committee Antitrust.
Julian Joshua and Christopher Harding.
Law Council of Australia - National Criminal Law Liaison Committee.
Law Council of Australia - Trade Practices Committee of the Business Law Section.
Leighton Holdings Ltd.
Maurice Blackburn Pty Ltd.
Maurice Blackburn Pty Ltd - Supplementary Submission.
Dr Christine Parker.
Letter - Warren Pengilley
Speed and Stracey Lawyers.
Tasmanian Forest Contractors Association.
The Finer Detail Australia Pty Ltd.
Mr Evan Whitton.

Commentary - documents

Caron Beaton-Wells and Brent Fisse, 'Criminalising Serious Cartel Conduct: Issues of Law and Policy', (2008) 36 Australian Business Law Review 166
Justice Peter Heerey, 'Commentary on the Paper of Caron Beaton-Wells and Brent Fisse' (Paper presented at Seminar on Criminalising Cartel Conduct, Centre for Corporate Law and Securities Regulation, The University of Melbourne, 25 February 2008)
Anthony Gray, 'Criminal Sanctions for Cartel Behaviour' (2008) 8(2) QUT Law and Justice Journal 364
Janet Austin, 'Is My Client's Conduct Dishonest or Merely Excusable Sharp Practice?' (2010) University of Queensland Law Journal 263
Brent Fisse, Price Fixing and the Cremation of Dishonesty by the House of Lords (14 March 2008) Brent Fisse Lawyers. You can link to the article here.
Brent Fisse, 'The Proposed Australian Cartel Offence: The Problematic and Unnecessary Element of Dishonesty' (Revised version of a paper presented at the Centre for Regulation and Market Analysis
4th Annual Trade Practices Workshop, Barossa Valley Resort, 20 October 2006). You can link to the paper here.
Brent Fisse, 'Cartel Offences Under the Trade Practices Act 1974 (Cth) Definitional Issues' (Paper presented at New South Wales Bar Association Federal Law Criminal Law Conference, Sydney, 5 September 2008).

Commentary - Media

'At Last, a Watchdog is Set to Gain Teeth Against Cartels', News - Leaders, The Age (Melbourne), 11 December 2007
Terry McCrann, 'It's Time We Gave Our Watchdogs the Fangs to Prosecute Cartel Criminals', Finance, The Australian, (Sydney), 15 December 2007, 37
Jordan Baker, 'Cartel Operators Face Jail Under Labor Proposal', Business, Sydney Morning Herald, (Sydney), 12 December 2008, 53
Tim Colebatch with Jordan Baker, 'Draft Bill Seeks Jail for Cartel Offenders', Business, The Age, (Melbourne), 12 December 2008, 3
Russell Miller, 'Cartel Bill Risks Tying Up Courts', The Australian, (Sydney), 8 May 2009

October 2008 - Exposure Draft Bill (2) Released for Consultation

On 27 October 2008, Minister Chris Bowen, Assistant Treasurer and Minister for Competition Policy and Consumer Affairs, announced the release of a revised Exposure Draft Bill.

Bowen noted the revised bill was the result of lengthy public consultations following on from the release of an earlier draft bill in response to which over 30 submissions had been received from businesses, law firms, academics and the community at large. The Government had also held two roundtable discussions with Australia's leading trade practices and criminal law experts before finalising the cartel bill.

Bowen reviewed some of the elements of the final bill including:

the fault elements would be the intention and knowledge or belief rather than dishonesty, thereby applying the same fault elements as the Criminal Code
the maximum jail term would be 10 years, an increase from the 5 years in the first exposure draft bill
there would be provisions that discriminate between parallel civil and criminal prohibitions by requiring the criminal standard of proof and the fault elements for the offences and also enabling civil proceedings to be postponed until criminal proceedings are completed and upon conviction, civil proceedings to be terminated
the test for a price fixing provision would that it has the purpose, effect or likely effect of fixing prices, and the test for other cartel provisions (output restrictions, market sharing and bid rigging) would be that the provision must have had the purpose of directly or indirectly restricting outputs, sharing markets or rigging bids
telecommunications interception powers would be available to investigate breaches of the cartel offence
it would be a defence if the cartel provision is for the purposes of a joint venture for the production or supply of goods or services.

The Archive List links to the revised Exposure Draft Bill and associated material and to the Parliamentary Reading Speeches and also lists news reports and academic commentary about the revised Draft Exposure Bill.

Primary Sources

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 Exposure Draft (171008)

Ancillary sources

Report from Treasury - Overview of legislation December 2008 - legislation update LCA TPC meeting
Chris Bowen, 'Rudd Government to Introduce Legislation Criminalising Cartels' (Press Release, No. 087, 7 October 2008). You can link to the press release here.

Commentary - documents

Brent Fisse, Joint Venture Defences Under the New Exposure Draft Bill - JV Ultra-lights and Other Problems, Fifth draft 12 November 2008.
Law Council of Australia, Submission Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008, 21 November 2008.
Alex Steel, 'What's to Know? The Proposed Cartel Offence' (2009) 32 University of New South Wales Law Journal 216

Commentary - Media

Caron Beaton-Wells and Brent Fisse, 'A Test of Leadership for the ACCC Chairman and the Commonwealth DPP' Opinion, Australian Financial Review (Sydney), 31 October 2008

3 December 2008 - Bill Intoroduced Into House of Representatives; Revised ACCC-CDPP MOU, ACCC Immunity Policy and CDPP Prosecution Policy Annexure B Released

The Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 was introduced into the Australian Parliament's House of Representatives on 3 December 2008.

The Opposition Liberal Party indicated in principle its support for the introduction of criminal sanctions.

The Bills Digest which was prepared for legislative debate referred to the OECD 1998 Recommendation, the 2003 Dawson Report and the 2007 prosecution of the Visy Group by the ACCC as background for introducing the Bill. The Digest also referred to the economic aspects of cartel conduct in denying consumers choice and distorting the competitive process, as well as comparing it to white collar offences such as insider trading or fraud The definition of serious cartel conduct in the Bill followed the OECD 1998 Recommendation, targetting price fixing, output restrictions, market allocation and bid rigging.

The Archive List links to the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008, the Explanatory Memorandum and associated material and to the Parliamentary Reading Speeches. The Archive List also lists news reports and academic commentary about the introduction of the Bill to Parliament.

Primary Sources

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (as introduced for first reading).
Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2009 (as passed by both Houses). You can link to the Bill here.
Explanatory Memorandum, Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. You can link to the Explanatory Memorandum here.
Supplementary Explanatory Memorandum and Correction to the Explanatory Memorandum, Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008. You can link to the Explanatory Memorandum here.
Commonwealth, Parliamentary Debates, House of Representatives, 3 December 2008, 12309-13 (Chris Bowen) (Second Reading Speech). You can link to the Speech here.
Commonwealth, Parliamentary Debates, Senate, 12 February 2009, 845-8 (Nick Sherry) (Second Reading Speech). You can link to the Speech here.
Commonwealth, Parliamentary Debates. You can link to the Parliament of Australia Hansard page linking to the debates on the Bill here.
Parliament of Australia, Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2009 bill homepage. You can link to the bill homepage here.
Revised MOU between the ACCC and the CDPP. You can link to the revised MOU here.
from CDPP website - https://www.cdpp.gov.au/sites/default/files/MR-20140910-MOU-Serious-Cartel-Conduct.pdf
Updated ACCC Immunity Policy for Cartel Conduct. You can link to the updated Immunity Policy here.
Annexure to the Prosecutions Policy of the Commonwealth for Imuunity from Prosecution in Serious Cartel Offences. You can link to the Annexure here.

Ancillary sources

Letter, from Tim Sheehy, Chief Executive, Chartered Secretaries Australia, to Scott Rogers, Senior Adviser, Competition and Consumer Policy Division, The Treasury, 23 January 2009. You can link to the letter.

Commentary - documents

Brent Fisse, 'Unjustified Per Se Criminal and Civil Liability under the Trade Practices Act 1974 (Cth) for Supply Agreements Between Competitors' (2009) 32 University of New South Wales 239
Robert Baxt, 'Editorial' (2005) 33 Australian Business Law Review 85
The Economist Intelligence Unit, 'Monthly Report December 2008 Australia' 2008
'Australia Takes Hard Line on Cartels', AsiaLaw, November 2008
Ross Zaurrini, Tihana Berak and Peter Armitage, 'Bill to Criminalise Cartel Conduct Reviewed' (8 December 2008) Blake Dawson.

Commentary - Media

Caron Beaton-Wells and Christine Parker, 'Tough Cartel Laws Face Acid Test', The Australian Financial Review (Sydney), 4 December 2008
Chris Bowen, 'Making Jail as Real for Cartels as the Temptation to Steal', News and Features - Opinion, The Sydney Morning Herald (Sydney), 5 November 2008, 11
'Oppn Will "Carefully" Consider Govt's Cartels Policy', Australian Associated Press General News, 28 October 2008

Others

February 2009 - Senate Economics Committee inquiry and report.
June 2009 - Bill passes APH (Senate 15 June 2009).
24 July 2009 - Bill takes effect.
July 2009 - ACCC Guidelines (Cartel Investigations), Revised ACCC/CDPP MOU, ACCC Immunity Policy and CDPP Prosecution Policy Annexure B released. You can click through to the Archive List for the ACCC Guidelines and other documents here.